What’s right with the “groundbreaking” UK P2P compromise

The recording industry and the six largest ISPs in the UK have agreed on a …

Major music labels in the UK are crowing about a "groundbreaking" new agreement with the six largest ISPs in the country. Under the terms of the deal, negotiated with the help of the UK government, the ISPs will send sternly-worded warning letters to suspected illegal file-swappers. While any such deal will generate the predictable outrage in the usual quarters, this is actually a fair approach to the issue, and one that could have been a lot worse. Let's have a look.

Just keep swinging, you can't strike out

The memorandum of understanding between BPI, which represents the UK's largest labels, and the six ISPs (BSkyB, Virgin, Orange, Tiscali, Carphone Warehouse, and BT) is a far cry from some of the more radical ideas floated by the content industry over the years. ISPs will forward letters received from BPI investigators on to customers suspected of illegal file-sharing, and the ISPs have pledged to work toward a "significant reduction" in such downloading. Telecoms regulator Ofcom will work with the parties to come up with some method of dealing with repeat offenders, as the memo includes no enforcement mechanism.

Note what's missing from the deal: a three-strikes rule. In fact, the deal contains noenforcement mechanisms of any kind. There have always been worries about such proposals, which would eventually cut off Internet access to repeat copyright offenders. What sort of evidence would be required? Who would decide guilt or innocence? Would there be judicial oversight or a method of appeal? Given the significance of 'Net access to people's lives, did the punishment truly fit the crime?

The European Parliament earlier this year expressed opposition to such plans. According to the Guardian, the UK government has already taken such measures off the table, as well as part of this initiative. So what we're left with is simple notification. If you get a letter forwarded on from BPI, but weren't actually sharing the files in question, no worries.

Previous studies have shown that UK file-swappers will generally stop illegal activity once the veil of anonymity is stripped away. Toothless notification letters won't eliminate the issue, of course, but they should put a significant dent in it—especially when a letter shows up and mum finds out what little Ian has been up to.

No ISP spying

The second exemplary part of the deal is that it preserves 1) the ISP relation with its customers 2) the principle that ISPs are not responsible for monitoring and filtering content flowing over their networks. Once an ISP starts spying on its users, all sense of trust is gone (see the controversy surrounding Phorm and NebuAd, which use ISP data to sell more targeted ads). And making ISPs directly responsible for illicit content passing over their wires is horribly bad precedent that could be extended to thousands of illegal activities conducted every day over the web, by e-mail, or through Skype.

This deal preserves that situation, since the notifications come from BPI, which will essentially adopt the tactics of groups like the RIAA as it seeks to identify file-sharers by looking at BitTorrent seeding addresses or shared folders. The fact that ISPs will not be burdened with installing deep packet inspection gear or other filtering solutions is a hugely important part of the current deal, and is something worth fighting for in any future negotiations.

Keeping the government at bay—and a big caveat

The entire deal was done under the looming shadow of legislation. The government has been threatening for months that if a deal was not worked out by next spring, it would pass a law, and it looked to be a three-strikes law. Assuming the deal proves even modestly effective, it should remove the burning impetus for more severe government regulation in favor of content owners.

This is where the caveat to the whole deal comes in, though. Rightsholders have long shown an almost insatiable appetite for more control, longer copyright terms, etc. The music industry certainly won't rest on its laurels here, but will use the deal first to rope smaller ISPs into signing on, after which it will likely try to force the whole group of them to step up the pressure. If they don't comply, BPI appears to have the ear of the UK government, which makes an effective bully stick.

As a more-or-less final compromise on the issue, it sounds like a good one to us (or, at least, not a fully bad one, which is about all one can hope for in these matters); as just the first stop in a continued ISP squeeze play, though, it takes on a less-appealing cast.

A note on license fees

The Independent has reported that the government is considering a (voluntary) £30 license pay for those users who want to download music. BPI boss Geoff Taylor said today in a conference call that no such idea had ever been mentioned in negotiations he had been a part of, and that nothing like it was on the table, underneath the table, or located in any room in which the table might be found.